What to make of the “Change The Rules” campaign

Last Tuesday, October 23, 2018, union rallies were held in Melbourne and Sydney in support of the Australian Council of Trade Union’s (‘ACTU’) “change the rules” campaign. The protests followed a series of national TV and radio advertisements launched in early October. The “change the rules” campaign is seeking to “re-balance the system and negotiate on more equal terms with big business.” Despite the ACTU’s active involvement in the introduction of the Fair Work Act 2009 (Cth) (‘Fair Work Act’), the ACTU is now pushing for another overhaul of the industrial relations landscape. In the noise created by this campaign, the unions have perhaps overlooked the fact that for a large class of employees, the current framework provides better protection and job security than they have ever had.

The majority of workplaces in Australia are now governed by the Fair Work Act. The Fair Work Act was introduced by the Rudd Government after coming into power in 2007, largely due to a successful election campaign promising to reform the Howard government’s Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (‘WorkChoices’).

WorkChoices was heavily criticised for increasing employer protections and flexibility for businesses, while reducing employee entitlements and access to unfair dismissal laws and collective bargaining – the legislation was polarising. There were many that felt that it was what the economy needed, although the electorate, as a whole, rejected the approach. It is widely accepted to be one of the key things that ended John Howard’s political career.

However, while the two sides of politics have very different ideas over how “national system employees” should be treated, it is very easy to forget that prior to 2005, there was no such thing.

Throughout most of the 20th century, many employees were covered by either enterprise agreements, or by state or federal based industry or occupational awards. But there was an entire class of employees that had no award or agreement coverage, and no national level “protection” or job security, other than the private protection of their contract of employment with their employer. There was no minimum notice period, no redundancy entitlements, and no unfair dismissal protection for these employees. Some of these were executive level employees, that have traditionally been highly remunerated and regarded as being able to look after their own interests, however most of them were employees in junior professional roles and “middle management”. These employees were extremely vulnerable for many years.

While WorkChoices was quite correctly regarded as oppressive legislation, it had the useful effect of opening the door to legislation protecting “national system employees”. What followed, being the introduction of the Fair Work Act, was seen as a step in the right direction with the introduction of nation-wide minimum standards, and the streamlining of the award system. There are now 122 Modern Awards, compared to over 1,500 awards under the previous system. The Fair Work Act applies to all employees employed by a national system employer, regardless of whether they are permanent or casual. Further, some provisions in the Fair Work Act extend to non-national system employees. The Fair Work Act thus provides greater coverage, and a more consistent protection than any system we have previously had.

The cornerstone to the Fair Work Act is the National Employment Standards. There are 10 legislated National Employment Standards that apply to all employees regardless of their employer’s size or circumstances. These standards are:

A maximum standard working week of 38 hours for full-time employees, plus ‘reasonable’ additional hours.
A right to request flexible working arrangements for employees who are carers; are the parent of, or care for a child, who is school aged or younger; have a disability; are 55 or older; or are experiencing, or caring for a family member experiencing, family violence.
Parental and adoption leave of twelve months (unpaid), with a right to request an additional twelve months.
Four weeks paid annual leave each year (pro rata for part time employees).
Ten days paid personal/carer’s leave each year (pro rata for part time employees), two days paid compassionate leave for each permissible occasion, and two days unpaid carer’s leave for each permissible occasion.
Community service leave for jury service or activities dealing with certain emergencies or natural disasters. This leave is unpaid except for jury service.
Long service leave.
Public holidays and the entitlement to be paid for ordinary hours on those days.
Notice of termination and redundancy pay.
The right for new employees to receive the Fair Work Information Statement.

Employers cannot contract out of these statutory instruments by ordinary common law employment contracts.

The National Employment Standards introduced the entitlement of up to 16 weeks’ redundancy pay. Redundancy pay was previously only available to employees covered by awards and enterprise agreements. Under the National Employment Standards, access to redundancy entitlements was extended to managerial and professional employees not covered by awards.

A number of other benefits have been introduced under the Fair Work Act. Unfair dismissal laws under the Fair Work Act restored the eligibility for those working for employers with 100 or fewer staff. The Fair Work Act’s pay equity provisions empowered the Fair Work Commission to make equal remuneration orders to ensure people performing equal work receive equal remuneration. In 2017, Fair Work Act amendments were introduced to provide greater protections and redress for vulnerable workers introducing significantly higher penalties for breaches of employee record keeping and “serious contraventions” of workplace laws, such as the use of sham contracting.

These have arguably been big wins for Australian workers under the Fair Work Act.

The Fair Work Act has made substantial changes to the landscape of the Australian workplace, with arguably wider and more consistent protection for employees than has ever been enjoyed before. Despite the growing noise from the unions that may have you thinking Australian workers are grossly unprotected, Australian workers have a significant safety net by way of the National Employment Standards, which are available to workers regardless of the employer’s size, or the worker’s salary. While there is always opportunity for improvement, the ACTU’s plan to “overhaul” the system significantly overstates the problem. Curiously, the unions are now pushing to change the “broken” workplace laws they helped write less than a decade ago.

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March 27

5 inconvenient truths about ‘casual conversion’

Sally McManus threw down the gauntlet to ‘big business’ last week on behalf of the ACTU at the National Press Club.

Ms McManus set out a number of proposals about industrial relations, following through on the ACTU’s various television and social media promises that they would #changetherules. Issues such as a crack down on the gig economy, an overhaul of the labour-hire industry, a 7.6% raise to the minimum wage, greater access to collective bargaining, more robust ‘good faith’ bargaining provisions, and broader arbitral powers for the Fair Work Commission are all currently on the ACTU’s political agenda.

Most notably, however, was the reintroduction of a proposal that would allow all casual employees to convert to permanent employment status after six months of employment. As rationale for this, McManus claims casuals have no ‘job security’ and should not be denied basic rights by the refusal of permanent positions, claiming that the average ‘tenure’ of casual employees is 3 years.

This may be exciting rhetoric to support the #changetherules groundswell, however in respect of casual employment it forgets the following:

One – The idea that permanent part time employees have ‘job security’ is a myth.

It is perhaps a sad reality, but permanent part time employees do not have significantly greater ‘job security’ than casual employees. Casuals are covered by the exact same unfair dismissal provisions if they are engaged on a ‘regular and systematic basis’. They are also covered by the General Protections provisions of the Fair Work Act preventing any unlawful adverse action.

Permanent employees, under the National Employment Standards, are entitled to personal leave, annual leave, notice, and in some cases redundancy, but these financial benefits are negligible. Further, redundancy and notice (particularly in the first three years) are not significant enough to represent ‘job security’ in the mythical sense advocated by unions. These end of employment employment benefits (if they are ever realised) are significantly less than the twenty-five percent loading on top of every hour worked over the course of employment that is currently received by casuals.

The key difference (and some would argue only practical difference) is that casual employees are engaged on a flexible basis, with no guarantee of hours. What Ms McManus is therefore proposing, is that those employed on a flexible hours basis should be able to demand a guarantee of ongoing fixed hours after only six months of employment. When we cut through the political rhetoric, this is the only substantive change which would result from the ACTU’s proposal. And this raises some significant hurdles.

Two – There is a social need for flexible hours employment, which is growing.

Some casual jobs in society exist as a permanent reality, and the mere fact they may be done long term by a particular person does not change the essential nature of that role, or the ongoing requirement for it to exist. As consumers, we demand flexibility and choice, and as our market place becomes larger and more global, we are generally becoming averse to commitment. Sectors such as hospitality, retail, agriculture, education, all have a growing requirement for flexibility of staffing, which is tied directly to consumer demand.

Perhaps the best current example is the roll out of National Disability Insurance Scheme, which has been a key objective of the Australian Labour Party, and other socially progressive Australians, for decades. The community generally have nothing but praise for the objectives of the NDIS, because it puts the control back with the participant. However, from an employment perspective this has created a turbulent and unpredictable wave of participant led supply and demand throughout the entire disability services sector. Industry experts predict that the response to the roll out of the NDIS will lead to an almost complete casualisation of the industry.

As a rule, consumers are demonstrating a trend towards less ‘commitment’ to products and services. Restaurant customers rarely book tables, except for a very small class of venue. NDIS participants can change providers, or the nature of the supports they require, with virtually no notice. Educational institutions compete for student revenue, and take enrolments up to the day before teaching commences, which has broad impacts on teaching and other employment levels.

We cannot expect employers in competitive markets to maintain an employment commitment when their customer base gives no guarantee of revenue. Despite what people think, the clear majority of businesses do not have large reserves of revenue. While it may be convenient to blame ‘big business’ for driving casualisation of the workforce, it is primarily a response to the casualisation of every day life.

Three – Flexible hours creates employment growth, and regulation imposing commitment causes employment opportunities to recede.

For an example, I look no further than my own hospitality businesses, which I operated in regional New South Wales between 2004 and 2014. These businesses did not exist prior to 2004. We began with one full time employee, and three casuals. By 2014, we had two venues, 5 full-time employees and approximately 30 casuals, representing a total of approximately 12 full time equivalents. Our wage cost correlated almost exactly with revenue to the extent possible, and this hovered typically at 40% of revenue, which was at the upper end of what was sustainable in that sector. Our businesses were healthy but never insanely profitable. But one thing that could always be said was that we actively created jobs from day one. Those jobs were of a type, and in a location, where they were needed, and appreciated, by the people that held them.

If a legal entitlement had existed for any of the employees to make an election to convert to guaranteed and fixed hours, and been taken up by employees, three things would have inevitably happened:

the total hours (which had varied from week to week) would have reduced overall for those employees, as the business would only have been able to commit to the lower end of the possible spectrum of hours available from week to week;
the business’ capacity to maintain casual arrangements with other employees would have diminished, due to the commitment that had been made to the fixed hours employees, and new opportunities would have been slower to arise; and
given that the business would only be able to commit to the lower end of possible variation of employee hours, overall staffing would be reduced, and the capacity for the business to successfully deliver service to customers would have been threatened. This would have represented a threat to customer satisfaction, revenue, and in turn a recession of employment opportunities.

This may seem melodramatic or an exaggeration to some. But I suspect those people have never had a small business, nor had to wonder where next week’s payroll was coming from.

In whatever plans we make in order to protect vulnerable employees, we need to acknowledge that flexibility is always a precursor to growth, and growth is a necessary part of economic and social prosperity for everyone.

Four – A requirement for fixed hours after six months will incentivise short term casual employment.

There is no question that an entitlement to conversion after six months would create an incentive for employers to end casual employment prior to the entitlement arising. This is especially given that six months would also conveniently correspond with the commencement of unfair dismissal protections. It doesn’t take a ‘Mr Burns attitude’ to employment to work this one out. It is a no brainer. Those employers who are currently loath to commit to permanent arrangements (particularly amongst those employing entry level or unskilled workers) are likely to take this course. Prior to the six-month period, there will almost no legal remedy for employees who lose their casual employment. However, once they go beyond six months, not only will they be protected from unfair dismissal, but the entitlement to conversion will have arisen, and become a workplace right. The employees will be protected from adverse action under Part 3-1 of the Act for any proposal to exercise that right. For many employers, even the existence of this risk will create overwhelming incentive to end employment before this leverage can exist.

For many employees, seeking to work a casual job in the medium to long term with no desire to become permanent, this factor will put their employment at risk prior to the end of the first six month period. This would be counter-productive and contrary to the interests of vulnerable workers.

Five – Employers are vulnerable too.

This is the reality that is most often ignored by the union political dialogue, as they seek to inappropriately polarise the community into the ‘workers’ and ‘big business’. Less than 10% of private sector employees are union members, and small and medium businesses account for 97% of Australian businesses, employing over 40% of Australia’s workforce. A clear majority of the employment community no longer fit into the unions’ rhetorical paradigm. Businesses cease trading every day because of economic pressures, and this leads to job losses. Any sudden regulatory change which makes it considerably harder to maintain sustainable businesses will have broad social and economic consequences which effect everybody, most notably vulnerable workers. It is immensely foolish to promote a #changetherules initiative to allegedly increase job security, when it is obvious that it will only result in widespread job losses and uncertainty throughout the economy.

But I am pretty certain that Ms McManus and her ACTU friends actually know all of this, and this is just the latest political push to get someone charismatic to Canberra. I’m equally confident that Australian workers are probably wise (and weary) enough to be cynical when a proposal to #changetherules looks a little too good to be true.

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January 24

Growing support for a workplace response to domestic violence

Violence against women is now recognised as a serious and widespread problem in Australia. Whilst awareness has increased of domestic violence as a community issue, there is still much to be done to support victims. 2017 saw an increase in support for a workplace response to family violence, through the inclusion of family and domestic violence leave in all modern awards, or the National Employment Standards. At a minimum, unpaid leave looks likely to be inserted into modern awards in 2018, meanwhile the unions, Greens and Labor Party continue to push for paid leave.

What is domestic violence leave and why is it needed?

Family and domestic violence leave provides victims of violence by a family member time off work to attend legal proceedings, counselling, and medical appointments, as well as relocating or making other safety arrangements. Paid family and domestic violence leave can ensure financial security and support victims escaping abusive relationships.

Some large private sector employees, such as Telstra, KPMG, Woolworths, IKEA, NAB, Westpac and PwC, currently provide paid family and domestic violence leave entitlements. In addition, most State governments have domestic violence protections for their public servants, some of which include paid leave. However, the majority of Australian employees are reliant on a modern award for their minimum entitlements, and the unions are pushing to standardise workplace support.

ACTU’s application for paid domestic violence leave

In July 2017, a bid by the Australian Council of Trade Unions (ACTU) to have 10 days paid leave available to Australia’s two million award dependent employees, was rejected by the Fair Work Commission.

The Commission acknowledged that domestic violence is a significant problem in society, in the workplace, and for the national economy. It noted the inability of existing workplace entitlements to meet the needs of employees who experience domestic violence as their need for leave is often urgent and they may not able to request annual leave or flexible work arrangements at short notice. However, the Commission was not satisfied that ten days paid domestic violence leave was necessary to meet the objectives of the modern award and concluded that a cautious approach should be taken to the introduction of domestic violence leave, citing concerns over increased employer’s costs and the lack of data or evidence regarding the operation of such leave.

However, the Commission formed the preliminary view that an unpaid leave entitlement should be included in modern awards to enable victims to deal with the consequences of the violence. The Commission is currently reviewing submissions on the drafting of such a provision, such as what quantum of unpaid leave is appropriate, who can access it, and notice and evidence requirements.

Introduction of the Greens bill

In late November 2017, The Greens released draft legislation to introduce 10 days’ paid family and domestic violence leave as a new entitlement in the National Employment Standards (NES). The Australian Labor Party had previously committed to five days paid leave in the NES, but in response to the Greens bill, in early December, they raised their commitment to ten days.

Resistance to the introduction of paid domestic violence leave

The Coalition and some employer representatives have resisted the extension of paid family violence leave to all employees in Australia, through inclusion in modern awards or the NES. Their primary concern is that paid domestic violence leave would impose a significant and undue expense on employers, with the Australian Chamber of Commerce and Industry (ACCI) claiming it could cost employers as much as $205m to create just one day of domestic violence leave per worker per year.

A common objection from employer groups is that domestic violence is a societal issue, not a problem that is created by employers, and as such, a government funded national system of domestic violence leave is required, in the same manner as paid parental leave. Other opponents of the proposal argue domestic violence leave is just another union shakedown, and any paid family violence leave provisions will be abused to justify non-necessary work absences, i.e. it will become the new “sickie”.

There is also a concern that the current proposals might drive a further divide between the entitlements of permanent and casual employees. The paid family violence leave provisions currently available in some enterprise agreements generally only cover employees in full time or part time employment, when casual employees facing violence do not even have access to paid annual or sick leave entitlements. The ACTU submits that 51% of award-covered women are employed as casuals, so it is essential that casuals are included in any amendments. Otherwise, paid family violence leave will only serve to further incentivise employers toward casualisation of the workforce.

There is also recent research which challenges the effectiveness of paid domestic leave policies, with the conversion from policy into practice falling short. A survey of HR professionals published by the Australian HR Institute in September 2017 concluded that Australian workplace domestic violence policies don’t translate into practice. Only 14% of respondents currently report any form of specific training for supervisors and managers to help victims disclose domestic violence, and only 18% have any form of manager training to recognise victims of domestic violence.

Arguments in response

Research by the Centre for Future Work at the Australia Institute suggests that the costs of paid domestic violence leave is unlikely to impose a noticeable increase in labour costs for employers, and any costs are likely to be largely offset by benefits such as reduced turnover and improved productivity. Only about 1.5% of female employees and around 0.3% of male employees are likely to utilise paid domestic leave provisions, costing $80m to $120m per year. The massive discrepancy in cost compared the ACCI’s modelling, derives from utilisation assumptions, with the ACCI’s figures based on 25% of female and 10% of male workers accessing the leave each year. The ACCI utilisation rate is far greater than what has been experienced by employers who already have paid domestic leave provisions in place.

Supporters of paid family violence leave argue that there would be two tests to ensure the system is not open to abuse, and would restrict the incidence of leave-taking to subset of those workers who actually experience domestic violence. Firstly, the leave must be related to specific activities or events related to the violence, to support employees in their efforts to escape the violence. It’s not intended as compensatory leave for victims. Secondly, documentary evidence must be provided regarding the nature and timing of those events if requested, such as a note issued by police, a doctor, or a lawyer, for example.

With regards to casuals, the unions bid for paid leave to be included in the modern awards, and the Greens’ bill regarding the NES, both provide for paid leave entitlements to be extended to casual employees. Under the ALP’s proposal, casual workers would be entitled to unpaid leave.
Conclusion

The argument that paid family and domestic violence leave is too expensive has been refuted by the research which considers the actual experience of several Australian employers who have already implemented paid leave policies. It shows that in practice, paid leave entitlements are not frequently utilised, and any incremental costs are offset by the broader economic benefits.

The complexity of family violence requires a strategic approach by all levels of government, business, and the community. Developing a workplace response to domestic violence also requires support measures besides paid leave, such as training for managers to help victims disclose domestic violence, referral of employees to appropriate domestic violence support services, flexible work arrangements; and no adverse action or discrimination of the victims of domestic violence. Unless workplaces take measures to promote disclosure, and managers are trained to support their employees, the stigma already involved in revealing domestic violence is unlikely to dissipate, and the purported benefits and costs of providing paid family and domestic violence leave are unlikely to be realised in any event.

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March 10

Work-life balance, the ACTU and a jar full of condoms….

This article late last week, about the ‘work-life’ balance statements of Southern Cross Austereo executive Linda Wayman, was reacted to with immediate controversy.

As parental rights at work are currently a hot topic in Industrial Relations and HR circles (our own firm publishing this update just last week), I have to admit being more amused by her comments than anything else. She claimed that ‘work-life balance’ was ‘bullshit’, and that she had a ‘jar of condoms’at work which she offered to her employees for free, to discourage her employees from having children. An SCA chief executive defended the comments as ‘obviously tongue in cheek’.

But reading some of the comments on the article, this has clearly has not been accepted as tongue in cheek, and while she has had one or two supporters, Ms Wayman is described in at least two comments as a ‘horrible’ person, and by many others as having a ‘disgraceful’ attitude. However in my opinion Ms Wayman at least should be applauded for the healthy dose of realism her comments provided, even if the infusion of ‘shock value’ was lacking in refinement. And credit where it is due, a successful career woman with two children should be entitled to express her opinions freely on this issue.

But this is very important socially and and philosophically, and will not be solved long term by ‘tongue in cheek comments’, nor by knee jerk internet hysteria. Above all, as an issue it is not being served well by interest groups such as the ACTU and ACCI tossing it around like a poker chip.

The first major problem is that contemporary discussion has tended to confuse the issues of ‘work-life’ balance and ‘gender equality’. These are not the same thing, and to conflate them in discussion is extremely damaging to the progress of either cause. To discuss ‘work-life balance’ as if it is an issue that concerns women more than it concerns men simply reinforces and perpetuates the notion that woman inherently hold primary responsibility for the care of children. At the same time it undermines the rights (and obligations) of men in society in asserting their own interests in balancing home and family. While it is accepted that woman are required to contribute more to the biological process, this is a short term factor. There is no practical reason why women should be disadvantaged at work. There is also nothing in the ‘black letter’ law of employment that currently differentiates between men and women with respect of parental rights. But the pay gap refuses to close, the ‘glass ceiling’ holds strong, and there are more men named Peter running ASX200 companies than women. Conversely, those men seeking flexibility at work to contribute to their families often face greater resistance from employers than their female colleagues. This issue is not a legal issue, it is a cultural issue. And it will continue to pervade until it is properly addressed as such.

Secondly, when it comes to concepts of ‘work’ and ‘life’, there are no objective truths. Each to their own. It is common place to find people on the internet and social media spruiking their own family values – and this can often spill over from the subjective and anecdotal to the objectively prescriptive. “I live this way with my family and it works for me, ……. so you should too”. However any occurrence of someone publicly indicating that they have factored career considerations into their family lives is met with controversy. The mere suggestion that one has considered having less children (or dare I even say “no” children) to focus on other aspects of their life is often met with criticism. Ms Wayman being described as ‘horrible’or ‘disgraceful’, for example, are very strong responses to someone merely advocating contraception in a tongue in cheek manner to those seeking a career. At no stage did Ms Wayman suggested that having a career was in any way preferable to having a family, and even if she did, is this opinion really that offensive to families? The media and internet is littered with the mantra that family is everything, and career means nothing – and we rarely see career minded individuals with small families (or no kids) describing this view as ‘disgraceful’. As a parent myself I understand how much family and children become your ‘whole world’, especially while they are young. In some ways this is instinctively ingrained into our evolutionary identities. But herein lies the subjectivity – your children are your ‘whole world’, not the actual ‘whole world’. Expressing a view that having less children has some advantages is not a criticism of your children.

Finally, we need to take ownership of our choices, and the consequences of those choices. There is a considerable difference between a legal ‘right’ to pursue a particular course within life, and an ‘entitlement’ to every benefit accrued by that course. In a free society such as ours, life is full of a wide range of opportunities for fulfillment. We have the opportunity to do many things, but unfortunately we can’t do everything, and I believe it’s important to acknowledge these choices. There are a great number of people that chose to pursue large families and / or quality family life as a priority far above career or work. There are many that forgo families all together to focus on work. (Not forgetting the very broad category of people for whom having a family is simply not an option for whatever reason.) But our rights to pursue our own course through life is not the same as having an entitlement to the whole package. Those people, like myself, that chose to balance work and family have to accept that their careers will not be quite as high reaching as if they had not chosen to put time and value into their family life. Conversely, they cannot expect to have limitless opportunities at home. There are sacrifices to be made in the pursuance of any active or full life. But like everything involving the word ‘balance’, there needs to be some give and take.

* Helen Carter is the Director and founding solicitor at PCC Lawyers, a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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January 27

Domestic Violence Leave

Like many, I was very pleased to see Rosie Batty named as Australian of the Year for her work in raising awareness and promoting the prevention of domestic violence. There are many working tirelessly in this field, but in the context of her own personal tragedy Ms Batty’s work is particularly special. Few of us would be able to go on after experiencing a tragedy such as hers, but to have the strength to reflectively use her experiences to prevent others sharing her own loss is truly courageous, and she is a most deserving recipient of the award in my opinion.

Behind the scenes, in workplace law, the issue of domestic violence has been approached in a less satisfactory matter. As a major social epidemic, it requires non-political and bi-partisan cooperation from government, employers and unions alike. But unfortunately domestic violence seems to have been distilled down to a stereotypical arm-wrestle between employers and unions over the usual entitlement – paid leave.

Domestic violence leave (‘DV leave’) is a relatively new concept which has enjoyed rapid growth over the last 5 years. Currently, nearly 2 million Australian workers are covered by DV leave, as a result of Union collective bargaining. The ACTU are now pushing hard for the statutory inclusion of a minimum of 10 days’ DV leave for all full time employees, pro-rata entitlements for all part time employees, and have lodged a claim in the Fair Work Commission. This article by Jenna Price outlines some of the developments in greater detail.

I agree with Ms Price’s sentiments regarding domestic violence, but do not agree that paid leave will achieve a reduction in domestic violence. Having spent nearly 20 years negotiating with unions, I have become accustomed to their unique attitude to paid leave as not only the primary goal of negotiation, but as a pancea for all ills – the idea that any problem or challenge faced by employees in their personal lives will be overcome by their employers paying them to stay away from work. From the employers’ perspectives, the cost of leave amounts to not only the actual cost of wages paid, or replacement staff, but is compounded by loss of productivity and business cohesion. I have worked on Enterprise Agreements where some full time staff members were entitled to as much as 75 days paid leave. If all of this is taken, it amounts to the employee being absent on average for nearly 2 days out of 5. Most full time employees across a variety of industries would agree that this type of absence makes it very difficult to achieve productivity by their own standards and goals, let alone those standards required by their employer.

Further, there would seem to be a logical incongruence with a contention that DV leave will ‘fix’ domestic violence. The contention would seem to be that additional time off will be to avoid coming to work with bruises, or to attend court or counselling without loss of pay. This seems to be an exclusively reactive solution, aimed only at ameliorating the consequences of domestic violence, rather than attacking the root cause. Indeed, there is an implied suggestion that DV leave can actually be a way to hide domestic violence from colleagues, which I can’t accept as a positive goal. Ms Price quotes the costs of domestic violence on the Australian community as nearly $14 billion, but nowhere is there a suggestion of how DV leave will reduce the incidence of Domestic Violence. In fact, if we increase paid leave on its account then the attributable costs will only increase further.

But the key unsatisfactory issue to me is that DV leave only benefits those who are in full time or part time employment. These people do not represent the whole community, nor even the whole workforce. It never has, and increasingly never will. The National Employment standards already provide for 10 days personal leave, and 20 days annual leave for full time employees, as well as provisions for flexibile workplace arrangements for victims of domestic violence. Whether or not this is adequate is debatable, but not the real issue here. The real question is should we be arguing for more leave entitlements for full time employee victims of domestic violence, when casual employee victims of domestic violence currently have nothing at all? While domestic violence occurs across all categories of society, there is no question it has particular prevalence among sections of the community that have already been marginalized and casualized by the Australian workforce. Paid DV leave will only serve to further drive the wedge between those employees with full time benefits and those without. Diverting more money from employers toward only one section of the workforce, and further incentivising those employers toward casualization, is not an equitable solution to a social problem of this magnitude. So if we would like to see employers kicking the tin a bit harder, then let’s come up with a solution for employer involvement which spreads the benefits fairly, and is aimed at pro-active rather than reactive measures.

Firstly, s 351 of the Fair Work Act, which provides the grounds under which employees should be protected against unlawful adverse action at work, should be amended to include victims of domestic violence. This would protect full time, part time, casual workers, employees in probationary period, and even prospective employees, from being adversely treated because they or members of their family are victims of domestic violence. Once alleged, the onus is on the employer to prove this action has not been taken for this reason. This would be a great starting point, which would cost the government and tax payer nothing. Further, the true costs of this provision would be borne exclusively by the employers that are at fault.

Secondly, we should acknowledge that preventing domestic violence is best achieved by keeping people away from the danger (which by definition is at home), not by keeping them away from work. Based on my rough estimates, 10 days mandatory Domestic violence leave would cost employers on average approximately $50 per year per employee. (Based on Ms Price’s contention only about 1% of employees made use of leave.) If this could be levied across the entire workforce, couldn’t this money be spent better on the provision of free counselling, accommodation centres, support or legal advice through the workplace? $50 per employee throughout the Australian workforce would go a long way for those in need, irrespective of whether they are full-time, part-time, casual, or unemployed. When the Government, employers, and unions start working together in this direction, the potential for real change is huge. But as long as the issue is fought along these traditional and anachronistic industrial relations battle lines, genuine solutions will continue to elude us.

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